Affirmative Defense


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Affirmative Defense

A new fact or set of facts that operates to defeat a claim even if the facts supporting that claim are true.

A plaintiff sets forth a claim in a civil action by making statements in the document called the complaint. These statements must be sufficient to warrant relief from the court. The defendant responds to the plaintiff's claims by preparing an answer in which the defendant may deny the truth of the plaintiff's allegations or assert that there are additional facts that constitute a defense to the plaintiff's action. For example, a plaintiff may demand compensation for damage done to his or her vehicle in an automobile accident. Without denying responsibility for the accident, the defendant may claim to have an affirmative defense, such as the plain-tiff's contributory Negligence or expiration of the Statute of Limitations.

An affirmative defense is also allowed under rules of Criminal Procedure. For example, a defendant accused of assault may claim to have been intoxicated or insane, to have struck out in Self-Defense, or to have had an alibi for the night in question. Any one of these affirmative defenses must be asserted by showing that there are facts in addition to the ones in the indictment or information charging the defendant and that those additional facts are legally sufficient to excuse the defendant.

The rules that govern Pleading in most courts require a defendant to raise all affirmative defenses when first responding to the civil claim or criminal charges against him or her. Failure to do so may preclude assertion of that kind of defense later in the trial.

affirmative defense

n. when a defendant files an answer, in addition to denying some or all of the allegations, he/she can state what are called "affirmative defenses." These defenses can contain allegations, take the initiative against statements of facts contrary to those stated in the original complaint against them, and include various defenses based on legal principles. Many of these defenses fall into the "boilerplate" (stated in routine, non-specific language) category, but one or more of the defenses may help the defendant.

References in periodicals archive ?
The short an swer in the seventh circuit, unlike in many other circuits: almost certainly not if the litigation is defensive, such as a counterclaim or affirmative defense to the claimant's lawsuit.
Now, here is the second and most critical thing that we ought to think about: The court then would be required to rule on the affirmative defense pretrial.
The Supreme Court created the Affirmative Defense in two 1998 decisions: Farragher v.
When applying an affirmative defense to an Article 120 offense--whether instructing members or judge alone--the military judge MUST include the following statement on the record: "This court is aware of the Court of Appeals for the Armed Forces cases interpreting the statutory burden shift for Article 120, UCMJ, affirmative defenses.
23) As Wright and Miller explained preTwombly, "an affirmative defense may be pleaded in general terms and will be held to be sufficient, and therefore invulnerable to a motion to strike, as long as it gives the plaintiff fair notice of the nature of the defense.
That is, perhaps, when you really get down to it, and you have an investigation and you can't do all the creative and good things to get a declination from the prosecutor to have the prosecutor do a deferred prosecution agreement, and you have to think about challenging the government, perhaps, we ought to think about an affirmative defense.
However, if he fails to plead his discharge in bankruptcy as an affirmative defense, he has lost the opportunity to interpose it as a defense at a latter time.
A village can still file a charge, but the person who is charged can assert an affirmative defense and state that he violated the ordinance in defending himself," Petka explains.
While the regulation exempts single-agency and nonfederally funded systems, adhering to the standard remains a sound practice, especially as an affirmative defense in a liability lawsuit related to records keeping.
Because the NCUA's prefailure conduct does not give rise to legally sufficient affirmative defense, the court should strike all affirmative defenses that are based on conduct by the NCUA prior to WesCorp's failure.

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